Guerra-Caballero v. Ashcroft , 130 F. App'x 487 ( 2005 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1542
MARLENE DAISY GUERRA CABALLERO ET AL.,
Petitioners,
v.
ALBERTO R. GONZALES,* ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Torruella and Selya, Circuit Judges.
Desmond P. FitzGerald and FitzGerald & Company, LLC on brief
for petitioners.
Peter D. Keisler, Assistant Attorney General, Civil Division,
M. Jocelyn Lopez Wright, Assistant Director, Office of Immigration
Litigation, and Carol Federighi, Attorney, Office of Immigration
Litigation, on brief, for respondent.
May 11, 2005
*
Alberto R. Gonzales was sworn in as United States Attorney
General on February 3, 2005. We have therefore substituted
Attorney General Gonzales for his predecessor in office as
respondent in this matter. See Fed. R. App. P. 43(c)(2).
Per Curiam. In September of 2000, petitioner-appellant
Marlene Daisy Guerra Caballero (Guerra) and her three minor
children, all Panamanian nationals, were apprehended by immigration
officials at Miami International Airport when they failed to
present valid entry documents. The government instituted removal
proceedings but provisionally released the petitioner and her
family, who took up residence in Massachusetts. The removal
proceedings were referred there and the petitioner cross-filed for
asylum, withholding of removal, and relief under the Convention
against Torture (CAT) on behalf of herself and her children.
Following a hearing on March 14, 2003, an immigration
judge (IJ) adjudged the petitioner and her children removable and
rejected their applications for asylum, withholding of removal, and
relief under CAT. The IJ's memorandum decision admonished that any
appeals from the decision were due on or before April 14, 2003.
See 8 C.F.R. § 1003.38(b) (stating that appeals shall be filed
within thirty days after the stating of an IJ's oral decision or
the mailing of an IJ's written decision). The IJ's written order
was personally served on the petitioner.
The petitioner's attorney, Desmond P. FitzGerald,
completed a notice of appeal on the petitioner's behalf and
overnighted it, via a delivery service, on Friday, April 11, 2003.
This notice listed only the petitioner as an appellant, omitting
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any mention of her children.1 The mailing was flawed, however, in
a fatal respect: it was addressed to the immigration court in
Boston rather than to the BIA's offices in Falls Church, Virginia.
See id. (stating that "[t]he Notice of Appeal . . . shall be filed
directly with the Board of Immigration Appeals"). The following
Monday, a clerk at the immigration court received the wayward
missive and promptly called Attorney FitzGerald to notify him of
the error. By then, it was too late: although Attorney
FitzGerald's office promptly forwarded a duplicate copy of the
notice to the BIA, that agency did not receive it until April 16,
2003 — two business days after the regulatory deadline had passed.
The petitioner followed this unsuccessful effort at
remediation with a motion to enlarge the time to file a brief, in
which she acknowledged her lapse and asserted unspecified
constitutional rights in an attempt to persuade the BIA to overlook
that lapse. The BIA was unconvinced: in a decision dated August
25, 2003, it cited the expiration of the thirty-day appeal period
as its basis for determining that further briefing would be an
exercise in futility and that it lacked subject matter jurisdiction
over the attempted appeal. Accordingly, the BIA deemed the IJ's
1
No notices of appeal were filed on the children's behalf
until almost six months after the due date. On March 24, 2004, the
BIA rejected the children's appeals as untimely. In her brief
before this court, the petitioner discusses only the BIA's failure
to allow her own appeal to proceed; she does not attempt to
formulate any argument that the children's appeals were timely.
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decision "final" and returned the case to the immigration court.
See id. § 1003.39.
Undeterred, the petitioner filed a motion for
reconsideration. In it, she characterized her attorney's blunder
as a "technical error[]" and argued that her good-faith effort to
comply with the deadline warranted a determination that the notice
of appeal was timely. The BIA denied the motion on March 24, 2004,
repeating substantially the same refrain that had been articulated
in its earlier decision. This petition for judicial review
followed.
On appeal, the petitioner renews her attack, first made
below, on the BIA's determination that her appeal rights were
forfeited. Because the petitioner failed to seek timely judicial
review of the BIA's August 25, 2003 ruling, the scope of our review
is necessarily limited to the BIA's denial of her motion to
reconsider. See 8 U.S.C. § 1252(b)(1) (requiring that petitions
for judicial review be submitted within thirty days of a final
order of removal); see also Stone v. INS, 514 U.S. 386, 394-95
(1995) (holding that filing a motion for reconsideration does not
toll the time to petition for review); Zhang v. INS, 348 F.3d 289,
292 (1st Cir. 2003) (similar).
We review denials of motions to reconsider solely for
abuse of discretion. Zhang, 348 F.3d at 293; Nascimento v. INS,
274 F.3d 26, 28 (1st Cir. 2001). "In the reconsideration context,
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we will find an abuse of discretion if the denial was made without
a 'rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis' (such as race)."
Zhang, 348 F.3d at 293 (quoting Nascimento, 274 F.3d at 28).
Viewed through this prism, the petitioner's argument is
unpersuasive. She devotes her brief to explaining, for what is now
the third time, why her notice of appeal should be considered
timely even though the BIA did not receive it by the appointed
deadline. The substantive argument is unavailing: the applicable
regulations are crystal clear as to what constitutes timely filing
of a notice of appeal, and the petitioner's filing does not satisfy
those criteria. See 8 C.F.R. § 1003.3(a)(1) ("An appeal is not
properly filed unless it is received at the Board, along with all
required documents, fees or fee waiver requests, and proof of
service, within the time specified in the governing sections of
this chapter." (emphasis supplied)); id. § 1003.38(b) (stating that
the notice "shall be filed directly with the Board of Immigration
Appeals within 30 calendar days" of an IJ's decision). The BIA
itself recognized, more than half a century ago, that it ordinarily
is powerless to ignore this regulatory limitation.2 "Where an
2
Under certain circumstances an immigration court may certify
an appeal directly to the BIA. See 8 C.F.R. §§ 1003.1(c), 1003.7.
Such a certification may provide the agency with the ability to
review an otherwise untimely appeal. See Shamsi v. INS, 998 F.2d
761, 762 n.2 (9th Cir. 1993); Matter of Iberia Airlines Flight No.
IB 951, 19 I. & N. Dec. 768, 768-69 (BIA 1988). However, this
procedure is entirely discretionary and, in all events, has not
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appeal is not filed timely . . . the Board is without authority or
jurisdiction to consider the appeal." Matter of G-Z-, 5 I. & N.
Dec. 295, 295 (BIA 1953) (holding that an appeal filed one day late
was unreviewable); accord Da Cruz v. INS, 4 F.3d 721, 722 (9th Cir.
1993).
There are, of course, equitable exceptions to this rule
— but they are very few and far between. For example, courts have
granted equitable relief when a petitioner has been misled by the
IJ's acts or words into believing that the time for appeal has been
extended or tolled and then reasonably relied on that assurance.
See, e.g., Hernandez-Rivera v. INS, 630 F.2d 1352, 1355 (9th Cir.
1980). Nothing remotely resembling such misplaced reliance is
alleged here. This is a case of late filing, pure and simple, and
thus does not justify an equitable exception. See Stajic v. INS,
961 F.2d 403, 404-05 (2d Cir. 1992).
At bottom, the petitioner invites us to classify as
irrational, anomalous, or discriminatory a BIA decision that did no
more than apply the regulations straightforwardly and in a manner
consistent with the Board's own precedents. On this record, it
would defy logic to accept that invitation. There is no hint here
that the BIA misconceived the facts, misinterpreted the law, or
acted arbitrarily. Accordingly, there is no plausible basis for
been invoked here.
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finding an abuse of discretion. See Wang v. Ashcroft, 367 F.3d 25,
27 (1st Cir. 2004).
We need go no further. We hold that the BIA acted within
the realm of its discretion when it denied the petitioner's motion
for reconsideration and refused to revivify her expired appeal
rights.
The petition for review is denied.
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